Schoenrogge v. Department of Justice

NOTE: This disposition is nonprecedential.
United States Court of Appeals for
the Federal Circuit
__________________________
TODD J. SCHOENROGGE,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
__________________________
2011-3126, -3143
__________________________
Petition for review of the Merit Systems Protection Board
in Case Nos.DA3330090467-C-1 and DA1221100611-W-1.
____________________________
Decided: November 14, 2011
____________________________
TODD J. SCHOENROGGE, of St. Francis, Kansas, pro se.
MICHAEL P. GOODMAN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on the
brief were TONY WEST, Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and REGINALD T. BLADES, JR., Assistant
Director. Of counsel was ANTONIA R. SOARES.
__________________________
SCHOENROGGE v. JUSTICE 2
Before NEWMAN, LOURIE, and LINN, Circuit Judges.
PER CURIAM.
In this consolidated appeal, Todd J. Schoenrogge seeks re-
view of two decisions by the Merit Systems Protection Board
(“Board”) denying his challenges to an adverse hiring decision
by the U.S. Department of Justice (“DOJ”). We affirm.
BACKGROUND
Mr. Schoenrogge applied to fill an announced vacancy with
the DOJ as a legal assistant in March 2009. When he was not
selected for the position, Mr. Schoenrogge claimed that the
DOJ had violated his rights as a preference-eligible veteran
under the Veterans Employment Opportunities Act of 1998
(“VEOA”) by failing to properly consider his application. The
U.S. Department of Labor initially dismissed his claim as
baseless, but on appeal to the Board, an Administrative Judge
(“AJ”) found that the DOJ had overlooked relevant qualifica-
tions that should have been considered with Mr. Schoenrogge’s
application under the VEOA. Accordingly, the AJ ordered the
DOJ to reconstruct its original selection process, properly
accounting for Mr. Schoenrogge’s applicable experience, and
inform Mr. Schoenrogge in writing of all actions taken to
comply with the order. Schoenrogge v. Dep’t of Justice, No. DA-
3330-09-0467-I-1, 2009 MSPB LEXIS 6319 (M.S.P.B. Sept. 28,
2009), review denied, 113 M.S.P.R. 441 (2010) (“Reconstruction
Order”).
On March 3, 2010, the DOJ performed the requisite recon-
struction of its hiring process, with the result that Mr. Schoen-
rogge ranked first on its reconstructed list of eligibles for the
position. But the DOJ sought and received formal approval
from its Justice Management Division to pass over Mr. Schoen-
rogge on the reconstructed hiring list due to past misconduct
that had precipitated his dismissal from prior employment
3 SCHOENROGGE v. JUSTICE
with the DOJ, see generally Schoenrogge v. Dep’t of Justice, 148
F. App’x 941 (Fed. Cir. 2005), and his subsequent behavior
demonstrating that he had not “been rehabilitated nor shown
remorse for his actions.” Accordingly, the DOJ exercised its
pass-over authority to decline Mr. Schoenrogge’s application,
and he was so notified with a letter outlining the reconstruc-
tion procedure and explaining the agency’s pass-over decision.
Mr. Schoenrogge responded by filing (1) a petition for en-
forcement alleging that the DOJ had failed to comply with the
Reconstruction Order, and (2) an individual right of action
(“IRA”) claim under the Whistleblower Protection Act (“WPA”)
contending that the DOJ’s pass-over decision constituted
illegal retaliation for engaging in protected whistleblowing
activities. With regard to the enforcement petition, the Board
found that the DOJ had complied with the Reconstruction
Order and explained that individuals cannot appeal pass-over
decisions to the Board. Schoenrogge v. Dep’t of Justice, No.
DA-3330-09-0467-C-1 (M.S.P.B. Oct. 28, 2010) (“Initial En-
forcement Decision”); 116 M.S.P.R. 355 (2011) (“Final Enforce-
ment Decision”). Addressing the IRA appeal, an AJ issued an
initial decision holding that collateral estoppel barred Mr.
Schoenrogge’s appeal because his arguments concerned disclo-
sures that had already been held ineligible for protection under
the WPA. Schoenrogge v. Dep’t of Justice, No. DA-1221-10-
0611-W-1 (M.S.P.B. Nov. 4, 2010) (“Initial IRA Decision”). On
review, the Board concluded that, although the AJ had errone-
ously invoked collateral estoppel, the appeal should nonethe-
less be dismissed because Mr. Schoenrogge failed to make a
nonfrivolous allegation of protected whistleblowing activity,
thus depriving the Board of jurisdiction to consider his appeal.
Schoenrogge v. Dep’t of Justice, No. DA-1221-10-0611-W-1
(M.S.P.B. May 13, 2011) (“Final IRA Decision”).
SCHOENROGGE v. JUSTICE 4
Mr. Schoenrogge timely appealed from both of the Board’s
decisions, and we have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
DISCUSSION
We must affirm decisions of the Board unless they are “(1)
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures required
by law, rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c). The
Board’s exercise of jurisdiction is a question of law that we
review de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410
(Fed. Cir. 1995).
The Enforcement Decision
The Reconstruction Order required the DOJ to weigh Mr.
Schoenrogge’s qualifications in accordance with the VEOA,
reconstruct its hiring process, and provide Mr. Schoenrogge
with written notice of the outcome. Rather than arguing that
the DOJ neglected these requirements, Mr. Schoenrogge’s
petition for enforcement disputes the merits of and factual
bases for the DOJ’s pass-over decision, especially the lack of
direct testimony from a DOJ official who signed the pass-over
request. These arguments are unavailing, however, because
the Board cannot review a pass-over decision “irrespective of
the reason for the decision.” 5 C.F.R. § 332.406(g); see also
Lodge v. Dep’t of the Treasury, 109 M.S.P.R. 614, 618 n.3
(2008).
On the core issue of compliance, the Board reviewed the re-
cord and found that the DOJ had satisfied its obligations under
the Reconstruction Order. In particular, the Board credited an
affidavit submitted by Bridgette Hill, the DOJ Human Re-
sources Specialist responsible for reconstructing the hiring
5 SCHOENROGGE v. JUSTICE
process, as well as documentary evidence chronicling the pass-
over decision and demonstrating appropriate written notice to
Mr. Schoenrogge. Mr. Schoenrogge has not directly disputed
the Board’s findings or offered contrary evidence bearing on
the DOJ’s compliance with the Reconstruction Order. Accord-
ingly, substantial evidence supports the Board’s findings, and
we discern no error in the Board’s decision to deny Mr. Schoen-
rogge’s petition for enforcement.
The IRA Decision
The Board has jurisdiction over an IRA appeal only if the
appellant has “exhausted administrative remedies before the
OSC [Office of Special Counsel] and makes ‘non-frivolous
allegations’ that (1) he engaged in whistleblowing activities by
making a protected disclosure under 5 U.S.C. § 2302(b)(8), and
(2) the disclosure was a contributing factor in the agency’s
decision to take a personnel action as defined by 5 U.S.C.
§ 2303(a).” Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367,
1371 (Fed. Cir. 2001) (citations omitted). Non-frivolous allega-
tions “cannot be supported by unsubstantiated speculation in a
pleading by the petitioner” and instead require allegations of
fact that could establish that a protected disclosure contributed
to an adverse personnel action. See Kahn v. Dep’t of Justice,
528 F.3d 1336, 1341 (Fed. Cir. 2008).
The Board concluded that Mr. Schoenrogge failed to make
any non-frivolous allegations of protected disclosures as re-
quired to establish jurisdiction over his IRA appeal. Mr.
Schoenrogge first contends that he should have been afforded a
hearing to substantiate his whistleblowing allegations, but we
have held that “[w]hether allegations are non-frivolous is
determined on the basis of the written record.” Spencer v.
Dep’t of the Navy, 327 F.3d 1354, 1356 (Fed. Cir. 2003). The
Board thus properly relied on Mr. Schoenrogge’s written sub-
missions in conducting its jurisdictional analysis. Before the
SCHOENROGGE v. JUSTICE 6
Board, Mr. Schoenrogge described his alleged whistleblowing
activities as follows:
This illegal act [the pass-over request] was in reprisal
for my past disclosures of criminal activity to include
perjury by the Agency Counsel Charles F. Smith, Re-
porting Immigration Judges Sean H. Keenan, Thomas
M. O’Leary and John Davis for violating federal laws
by bringing booze into a prison and ordering falsifica-
tion of official computer records[.] My past disclosures
of witness intimidation committed by a Supervisory
Legal Assistant.
Resp’t App. at 45. As recognized by the Board, Mr. Schoen-
rogge’s allegations are too conclusory and vague to support IRA
jurisdiction—his statement provides only his own subjective
conclusions regarding scarcely defined events and offers no
context or factual detail about the alleged improprieties, his
alleged disclosures, or the nexus between his alleged disclo-
sures and the DOJ’s pass-over request. As such, Mr. Schoen-
rogge has not alleged facts that would establish a violation of
the WPA. We also note that, while the Board did not apply
collateral estoppel, Mr. Schoenrogge’s current whistleblowing
allegations largely perpetuate arguments that have been
rejected in a previous IRA appeal. See Schoenrogge, 148 F.
App’x at 943-45. In sum, the Board did not err in dismissing
Mr. Schoenrogge’s IRA appeal for lack of jurisdiction.
Mr. Schoenrogge’s remaining arguments—comprising the
bulk of his briefing on both the enforcement petition and the
IRA appeal—variously and repeatedly assail the propriety of
the DOJ’s decision to terminate his employment in 2003. That
decision has been upheld with finality, id. at 945, and we will
not revisit it here.
7 SCHOENROGGE v. JUSTICE
CONCLUSION
Accordingly, the decisions of the Board are affirmed.
AFFIRMED